The Hawaiian gazette., 1887-03-22
BEFoRE PRESTON J.

BEFORE PRESTON J.
Decision.
The bill alleges a demise by Wal
aha and Kaululena her husband, to
the complainant, Of a piece of land
upon Maunakea street, Honolulu. for
fifteen years from December 1st. 1881,
at S25 per month, payable monthly in
advance That said lease contains a
covenant for quiet enjoyment. That
the reversion had been conveyed to
George Holt and Annie Holt, minors,
and that the defendant, Cartwright,
had been duly appointed guardian.
That the complainant had attorned
and paid rent to the defendant as such
guardian. That on the 18th of April.
1856, the buildings upon said land
were destroyed by the fire that then
swept over large portion of the city.
That Immediately after the said fire
the then Minister of the Interior
issued a proclamation forbidding the
rebuilding of structures upon certain
portions of the burnt district, includ-
ing the land so leased to complainant.
That sometime after. in the said
month. the Hawaiian Government,
acting under its right of eminent do
main, took possession of, and evicted
complainant from more than one half
of said premises, and that said evict-
ion continues. That a portion of said
premises from which complainant has
been evicted consists Of strip about
ten feet wide along said Maunakea
street and incorporated therein, and
another strip about thirty feet wide
along the makai side of said premises,
which has been incorporated in New
street That the value of the prem
ises left IN possession of complainant
is only one half of the value of the
whole premises comprised in said
lease. That complainant has received
no compensation from any source for
such eviction. That complainant has
paid no rent since said month of
April. but has offered to pay a pro
portional part to the defendant, and
that defendant has refused. and AYERS
continual readiness and willingness to
pay such proportional part.
The bill then AYERS. proceedings by
the defendant IN the Police Court,
Honolulu. against the complainant for
a forfeiture for non-payment of rent,
and prays for an apportonment of
the rent and an injunction against the
proceedings in the Police Court.
The defendant demurs to the bill
1. For want of equity.-And which
was chiefly relied upon in the argu-
ment,
2 That it nowhere appears in said
complaint that the complainant has
been evicted from any portion Of the
premises, by paramount title, or that
the eviction alleged was legal, or that
the Hawaiian Government has taken
such steps as to acquire and perfect a
legal title to such portions Of said
premises as complainant claims TO
have been evicted from, or that the
eviction has continued to be, and now
is legal, and by paramount title.
l am Of opinion that the bill dis
closes sufficient equity to put the de
fendant to answer. The bill might
have alleged the matter more specif-
cally. but it does allege an eviction by
the Hawaiian Government by right
of eminent domain, and l think l
must presume, for the purposes Of
this case. that the Government has
done all that is necessary by law to
entitle them to evict the complainant
This is matter of fact which must
be proved at the hearing. if disputed
by the defendant.
Surprising the allegations to be
true, the complainant would be en-
titled to have the rent apportioned,
unless by his conduct or neglect he
may have deprived himself of this
right as against the defendant.
I cannot understand by the allega
ton. that he has not received any COM
pensation. whether none has been
awarded to him or if awarded it has
not been paid.
I override the demurrer. the de
fendant may answer within fourteen
days.
Ashford & Ashford for complain
ant: ". A. Kinney for defendant.
March 8. 1887.
IT, S.r-,4so- 49,